Historic new whistleblower protection laws

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Historic new whistleblower protection laws

Posted 18/07/2013 by Mary Anne Neilsen

In the final days of the 2013 winter sittings, the Commonwealth Parliament passed historic public interest disclosure legislation to provide the most comprehensive protection regime for public sector whistleblowers in Australia. This legislation, the Public Interest Disclosure Act 2013 and its related consequential Act, which became law on Monday 15 July, will commence operation within the next six months. Its purpose is to provide a scheme for the investigation of alleged wrong doing in the Commonwealth public sector and provide protective mechanisms for current or former officials who make public interest disclosures under the regime.

Robust public interest disclosure laws are seen as fostering transparency and accountability in government. As the last Australian jurisdiction to implement stand-alone disclosure legislation, the new federal scheme is considered long overdue. The new law fulfils a Labor election promise of 2007 as well as the 2010 agreement with independents Andrew Wilkie, Rob Oakeshott and Tony Windsor. It also implements the Government’s response to the 2009 House of Representatives Standing Committee on Legal and Constitutional Affairs report Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector, an inquiry chaired by the current Attorney-General Mark Dreyfus.
The initial introduction of the legislation into Parliament in March 2013 was greatly anticipated, although its narrow coverage and complexity at that time disappointed many advocates who said it held out false promises of protection for public servants. However, with the benefit of two parliamentary inquiries and numerous submissions from leading researchers and academics, the Government introduced a series of late amendments (73 in all), which enhanced the coverage of the scheme greatly and reduced many of its complexities and ambiguities. 
The Parliamentary Library’s Bills Digest provides a summary of the legislation as introduced into Parliament and canvasses the views of the various submitters to the parliamentary inquiries.
Key features of the new law are:
  • It has broad coverage across the Commonwealth public sector, including application to the Australian Public Service, statutory agencies, Commonwealth authorities, the Defence Force, Parliamentary departments and contracted service providers for Commonwealth contracts.
  • Conduct is disclosable if it falls within the broad concept of wrong doing in the public sector. Conduct is not disclosable if it relates to political or expenditure matters with which a person disagrees. Thus the legislation does not provide a platform for people to agitate political grievances.
  • Whistleblowers can disclose directly to their supervisors, as well as to the ‘disclosure officer’ of the agency.
  • In addition to internal disclosures, it is possible to make a disclosure externally (such as to the media or a member of parliament) providing certain conditions apply. A whistleblower will still be protected if he goes public in circumstances believing that an investigation into his internal disclosure was inadequate. To gain protection, the whistleblower must disclose the wrongdoing internally first.
  • There is also provision for ‘emergency disclosures’. Where there is a substantial and imminent danger to health and safety or to the environment, the internal disclosure can be by-passed and disclosures can immediately be made public in accordance with specified conditions.
  • The Commonwealth Ombudsman’s office will have oversight functions and assist agencies and disclosers, to understand and comply with the legislation. The Ombudsman will oversee agency decisions and provide annual reports to Parliament on the operations of the scheme.
  • Intelligence agencies will be supervised by the Inspector General of Intelligence and Security. External disclosures are not permissible in relation to intelligence agencies and intelligence information.
To date, the passing of the new law has generally been welcomed and it is seen as a significantly enhanced and comprehensive framework for public interest disclosures in the Commonwealth public sector. 
The Coalition parties supported the legislation in Parliament and agreed that the Government amendments made for a tighter and more focused scheme.
The Australian Greens, while disappointed that many of their amendments were not adopted, are pleased that they achieved amendments to allow emergency disclosures in cases where there is a substantial and imminent threat to the environment. 
Dr AJ Brown, legal academic and leading authority on whistleblower protection laws is quoted as saying the new law as amended would restore the scheme to the original vision favoured by Mr Dreyfus when he chaired the 2009 inquiry into whistleblower protection. Furthermore Dr Brown believes the law is now robust enough to pass the ‘Kessing test’, meaning, had it been in place, it would have provided protection to Mr Allan Kessing, a former Customs officer, who was convicted of breaching secrecy provisions in the Crimes Act 1914 after information regarding criminality and corruption at Sydney Airport was published in the media.
Some advocates however argue there are still gaps. For example, Independent MP Rob Oakeshott says that while the new scheme is ‘overdue, welcome, and expected by the community’, it could have better dealt with whistleblowing against politicians and intelligence agencies, and he hopes in the future these issues will be comprehensively resolved. 
Both the Government and Coalition parties rejected extending the regime to members of parliament, arguing that this would be an unacceptable incursion into parliamentary privilege and the role of the Parliament itself. In relation to intelligence agencies, again both the Government and the Coalition rejected the lifting of the blanket exclusions for intelligence agencies in relation to external disclosures on the grounds that inadvertent or inappropriate disclosure of intelligence information may compromise national security and potentially place lives at risk.
The legislation provides for a statutory review of its operation two years after commencement. Given its speedy passage and also the significance of the reforms it introduces, that review should be useful and welcome.

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